Appeal No. EAT/0611/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 October 2001
Judgment delivered on 14 January 2002

Before
HIS HONOUR JUDGE REID QC
MISS C HOLROYD
MR P R A JACQUES CBE

IDAYATU ODERINDE	APPELLANT

DATAPACT LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised   22nd February 2002

	APPEARANCES

For the Appellant	MR S SIMBLETT
(Of Counsel)
Instructed by:
Messrs Bindman & Partners
Solicitors
275 Gray’s Inn Road
London
WC1X 8QF	
For the Respondent	MR R LEWIS
(Of Counsel)
Instructed by:
Messrs Tucker Turner Kingsley
& Co
Solicitors
18 Bedford Row
London WC1R 4EB	

JUDGE REID
Preliminary
1.	This is an appeal by Ms Oderinde from a decision of an Employment Tribunal held at London South which was sent to the parties on 17 March 2000 following a remedy hearing on 28 February 2000. On 8 October 1999 the Employment Tribunal had held that Ms Oderinde had been unfairly dismissed by Datapact Ltd but on the remedy hearing the Tribunal held that Ms Oderinde was entitled to only £1867.16 by way of compensation. It is against that finding that Ms Oderinde appeals asking that the compensation be increased to the limit in force at the relevant time, that is to say £12,000.

2.	The basis on which the Tribunal limited Ms Oderinde’s compensation to £1867.18 was that even though she was unfairly dismissed, she would have been fairly dismissed six weeks later and therefore her compensation should cover only that period of six weeks.

The facts 
3.	The Tribunal found that Ms Oderinde was employed by Datapact Ltd, a computer supply company, as the Head of the Configuration Department. She had started with the company on 13 January 1997 after a period of work experience. In January 1999 Ms Oderinde and a colleague, Mr Moffat  worked on a system due to be installed for a customer. On the afternoon of  8 January the boxed items on which they had been working were moved from the configuration room to the main office which was more secure, being under the supervision of video cameras. A delivery note was prepared and on Monday 11 January the items were delivered to the customer. On 14 January the engineer installing the system reported the software package was not there. A check was made and it was found that the software package had not been despatched.

4.	 On Friday 15 January Mr Long, a director of Datapact Ltd, viewed all the video tapes from the security cameras covering a period from lunchtime on 8 January to the following Monday lunchtime. In short what he believed he saw was Ms Oderinde knock the box of software off the table at 4.17 on the Friday afternoon. Over the weekend the only person who came within reach of the box was a cleaner who picked up a bin-liner and then set the alarm. At 10.21 on the Monday, he saw Ms Oderinde go behind the other boxes where the software box had previously fallen. She bent down and spent about a minute in that position. She then got up with a bin-liner and something else. The other boxes were later removed for delivery and at that stage it could be seen that the software box was no longer on the floor.

5.	As  a result of  what he saw on the videos Mr Long interviewed a number of staff, though not the cleaner. When he interviewed Ms Oderinde she said all she had taken on the Monday were her normal black bags for rubbish which were empty. At this point Mr Long concluded Ms Oderinde was holding the software in the bin-liner. He did not ask for her comments on his view but continued his investigation, and then reported the matter to the police and took legal advice. After meeting his colleagues he decided on 29 January she should be the subject of a disciplinary interview. Ms Oderinde was about to go on holiday to Nigeria to see her mother. Mr Long did not wish the interview to be delayed till after the holiday, so he summoned her to an interview at two hours notice. The interview conducted by all four directors of the company, was very short. She was not given a chance to see the relevant video. She denied taking anything and said that in the bags she held was "just rubbish I picked up at the side". She was disbelieved and dismissed. Her reaction then was that it was "just rubbish… an empty box in the bag".

6.	She was given a right of appeal, which she exercised by a letter dated 1 February. Her letter was acknowledged and she was offered copies of the statements taken from other persons interviewed and was told she would be sent a copy of the video when it was returned by the police. The appeal was heard after her return from holiday on 19 March. The hearing was chaired by Mr Warren, a director and two of the other three directors were present. Mr Long was not. At this stage neither Ms Oderinde nor the Union official who represented her had seen the video so it was gone through at the hearing. The hearing lasted an hour and a half. At the hearing she asked the committee to conduct an experiment because she asserted the box would not fit into a bin-liner. After the hearing ended Ms Oderinde and her representative watched the video again and then left. The requested experiment was carried out and it was concluded that the box (which weighed 4.5 kilos) could easily be fitted and carried in the bag. On 6 April, before the committee had made its final decision she wrote to Mr Smith, another director, saying she now realised what she had in her hand was an empty flat box and it could be seen from the way she was carrying it that it could not have weighed 5 kilos and so could not be the box of software. She referred to the video and said that she had spoken to the police who were not proposing to blow up the video but she would pay for this to be done herself. The company took no action on the letter.

7.	On 6 May Mr Smith wrote to her upholding her dismissal. She was sent copies of the statements, the minutes and a copy of the video. Ms Oderinde either (as the Tribunal found) never took any steps to try to have it enhanced or (as was suggested to us in the course of the hearing) was unable to get it enhanced. On 22 April 1999 Ms Oderinde's application alleging unfair dismissal was received by the Employment Tribunal. In August 1999 the company attempted to have the original security video (which had been recovered from the police) enhanced, but without success. 

The Tribunal's conclusions
8.	After its first hearing the Tribunal held that the company's investigation was adequate and that Ms Oderinde's dismissal was for a matter of conduct. That decision is not challenged byMs Oderinde. It then held that the original disciplinary hearing was unfair because Ms Oderinde was not given sufficient chance to prepare her case because she was not able to see and study the vital parts of the video in advance, she did not have the witnesses statements and she did not have adequate time to prepare her case. That decision has not been challenged by the company. The Tribunal went on to hold that the appeal hearing did not remedy the deficiencies in the original hearing even though it had been a complete re-hearing because she had still not had a chance to study the video and discuss it with her representative, the appeal panel were effectively being asked to reverse their own earlier decision, and (which weighed most heavily with the Tribunal) they failed to grant her request for a copy of the tape so that she could have the images enhanced. Taking all these matters together the Tribunal concluded having regard to equity and the substantial merits of the case the dismissal could not be regarded as fair. Again the company has not challenged this conclusion.

9.	At the second hearing the Tribunal considered the question of remedy. It concluded that if a fair procedure had been adopted the disciplinary process would have taken up to six weeks during which time she would have been suspended on full pay. It then went on to hold that, accepting evidence to that effect from Mr Smith, that she would have been dismissed following a proper disciplinary process and that the decision to dismiss would not have been one with which an Employment Tribunal would have interfered. The Tribunal referred to Polkey v AE Dayton Services Ltd [1988] ICR 142 and had regard to the words of section 123 of the Employment Rights Act 1996. It held that  it was just and equitable that Ms Oderinde should receive, in addition to her basic award of £440, the equivalent of six weeks pay, amounting to £1427.16.

Appellant's case     
10.	On behalf of Ms Oderinde it was argued that the Tribunal should not have concluded that it was just and equitable to limit Ms Oderinde's compensation to six weeks pay. It was said that the decision was inconsistent with the finding that the dismissal was unfair and that it failed properly to address the question of reasonableness.  It was submitted that it would only be in a case where the facts found by the tribunal would have resulted in dismissal that any reduction in compensation would be warranted.

11. Counsel for Ms Oderinde referred to Charles Letts& Co v Howard [1976] IRLR 248 and other cases for the proposition (not contested by the company) that it is for a claimant to establish that the job has been lost and that he or she has no other or less remunerative employment, and that once that has been done it is for the employer to make out that the loss is the loss of remuneration from the loss of the job. He went on to refer to Britool Ltd v Roberts [1993] IRLR 481, in particular a passage at para 26 where Judge Peppitt QC said "Once the Tribunal is satisfies the dismissal is unfair through lack of consultation or warning, the employee will by the same token have a prima facie loss -ie  the loss of his job. In our opinion very little more is then required of the employee to cause the evidential burden to shift to the employer, to show that the dismissal could or would be likely to have occurred in any event. If, for example, the employee is able to put forward no more than an arguable case that but for the lack of consultation or warning he would have kept his job, that will ordinarily be sufficient." He submitted that the employer had a closed mind on the question of Ms Oderinde's guilt, that Mr Smith's evidence was worthless and that it was "conceptually impossible" for an employer whose procedures were such that it had been impossible for the employee to exonerate him or herself to give any sensible evidence as to what the outcome would have been if a fair procedure had been adopted.

12.	He went on submit that the rule in Polkey applied only in "no difference" redundancy cases or in cases where there was either admitted misconduct or supervening misconduct by the employee. This, he submitted, was in line with the decision of the Court of Appeal in O'Donoghue v Redcar & Cleveland BC [2001] IRLR 615 in which Potter LJ said at para 44 "If the facts are such that an industrial tribunal, while finding that an employee/applicant has been dismissed unfairly (whether substantively or procedurally), concludes that, but for the dismissal, the applicant would have been bound soon thereafter to be dismissed (fairly) by reason of some course of conduct or characteristic attitude which the employer reasonably regards as unacceptable but which the employee cannot or will not moderate, then it is just and equitable that compensation for the unfair dismissal should be awarded on that basis." It followed in his submission that Ms Oderinde was entitled to full compensation for the loss of her job, which (he submitted) would amount to the relevant statutory maximum, then £12,000.

Respondent's submissions
12.	Counsel for the company submitted that section 123(1) of the 1996 Act states that the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the complainant's loss in consequence of the dismissal insofar as that loss is attributable to the employer. Therefore where the employee would have been fairly dismissed if the employer had followed a proper procedure, there is no loss attributable to the loss being unfair. Where adherence to a proper procedure would have resulted in a delay, the compensation will reflect that fact. If the tribunal finds that on the balance of probabilities the employee would have been fairly dismissed in any event, then the only loss will be that attributable to the acceleration of the dismissal. Whilst there could be cases, particularly redundancy cases, where the compensation may be reduced by a percentage to reflect the chance that the employee would have lost his job anyway (see per Browne-Wilkinson J in Sillifant v Powell Duffryn Timber Ltd [1983] IRLR 91 at 96, cited with approval by Lord Bridge in the Polkey case at p163), this was not such a case. 

13.	There was no finding, he submitted, that the disciplinary tribunal had a closed mind and the Tribunal was entitled to accept Mr Smith's evidence as to what would have been the result of a properly conducted disciplinary procedure. In his submission it followed that the Tribunal had been correct to come to the conclusion it did as to what would have happened if the dismissal procedure had been conducted fairly and had been entitled to hold that such a dismissal would have been fair. There is no reason in law or in common sense to limit the doctrine in Polkey in the way the Appellant suggested.

Conclusions
14.	In our view where a person is unfairly dismissed following an unsatisfactory disciplinary procedure it is open to the employer to show that the outcome would have been the same if a proper procedure had been adopted and that the ensuing dismissal would have been fair. In such a case the compensatory award will only be the amount referable to any period by which the dismissal would have been delayed by following a proper procedure. Whilst evidence from the employer to that effect will necessarily be extremely closely scrutinised because of the likelihood that it is self-serving, it is not impossible for such evidence to be given and accepted. There is no justification in law for saying that an employer can only assert that the compensatory award following an unfair dismissal should be nil in cases where there is redundancy, admitted misconduct or subsequent misconduct. It would be remarkable if the amount of compensation equitably payable to a dishonest but procedurally unfairly dismissed employee depended on whether or not he admitted his dishonesty, with in effect a prize being given for persistence in dishonesty.

15.	In the present case the Tribunal was entitled to hold that if a proper disciplinary procedure had been adopted the outcome would have been a fair dismissal and to award compensation on that basis. It follows that the appeal fails and will be dismissed.